State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1047

State of Minnesota,
Respondent,

vs.

Dymond Rene Hayden,
Appellant.

Filed July 8, 2024
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-22-5058

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Smith, Tracy M., Judge;
and Slieter, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal from a final judgment of conviction following a guilty plea, appellant
Dymond Rene Hayden argues that he should not be required to register as a predatory
offender because the offense of furnishing alcohol to a minor, of which he was convicted,
2
arose from different circumstances than the charged but dismissed predatory offense of
third-degree criminal sexual conduct. Because we conclude that the two offenses arose
from the same set of circumstances, we affirm.
FACTS
In September 2022, respondent State of Minnesota charged Hayden with two counts
of criminal sexual conduct: one felony count of third-degree criminal sexual conduct
committed against a minor and one gross-misdemeanor count of fifth-degree criminal
sexual conduct committed against another person.
According to the complaint, on August 5, 2022, the minor was staying at her friend’s
apartment, along with both girls’ mothers. The minor’s mother invited Hayden to come to
the apartment, and, late that night, Hayden arrived. There, Hayden offered the minor and
her friend alcohol, which the friend believed was “Fireball,” as well as marijuana and
cocaine. The girls declined the cocaine but drank the alcohol and smoked the marijuana .
They did so “outside the apartment in the community area of the complex.”
During the night, Hayden made inappropriate sexual comments to the minor’s friend
and tried to persuade the friend to go with him, saying that, “if anything sexual happened,
they couldn’t tell anybody—not parents, or cops, or anything.” Both girls were
uncomfortable and wanted Hayden to leave. The girls observed that Hayden was “drunk.”
The girls set up beds for themselves on the floor next to a couch, and Hayden went
into a bedroom to sleep. When the minor went into the bathroom to get ready for bed,
Hayden followed her in. He shut and locked the door and, using force, sexually penetrated
3
her. During the night, Hayden also entered the friend’s mother’s bedroom and engaged in
nonconsensual sexual contact with her.
Hayden entered into a plea agreement under which he pleaded guilty to gross-
misdemeanor furnishing alcohol to a minor (a count that was added in an amended
complaint) in exchange for dismissal of the two criminal-sexual-conduct charges. At his
guilty-plea hearing, Hayden admitted that, on or between August 5 and 6, 2022, he
provided the minor with alcohol—specifically, “Fireball”— while they were at the
apartment. Hayden testified that the minor consumed the alcohol. Hayden’s trial counsel
asked Hayden if he understood that his conviction would require him to register as a
predatory offender. Hayden responded that he understood. The prosecutor also confirmed
with Hayden that he had had enough time to talk with his attorney about the registration
requirement.
The district court sentenced Hayden to 230 days in jail, with credit for time served.
When sentencing Hayden, the district court reminded Hayden of his duty to register as a
predatory offender.
Hayden appeals, challenging the registration requirement.
DECISION
The predatory-offender registration statute, Minnesota Statutes section 243.166
(2022 & Supp. 2023 ),
1 enumerates registrable offenses. Minn. Stat. § 243.166, subd. 1b.
A defendant convicted of an enumerated offense must register as a predatory offender. Id.

1 The predatory-offender registration statute has been amended in a manner not relevant to
this case. See 2023 Minn. Laws ch. 52, art. 4, § 1, at 201-02.
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A defendant also must register as a predatory offender if they were “charged with” an
enumerated offense and were convicted of “another offense arising out of the same set of
circumstances.” Id., subd. 1b(a)(1). Here, Hayden was charged with the enumerated
offense of third-degree criminal sexual conduct. See id., subd. 1b(a)(1)(iii). Although that
charge was dismissed under the plea agreement, Hayden is still subject to registration as a
predatory offender if the offense of which he was convicted —furnishing alcohol to a
minor—arose out of the same set of circumstances as the dismissed enumerated offense.
He argues that it did not.
I. Justiciability
As a preliminary matter, the state argues that Hayden’s claim is non justiciable in
this criminal appeal because Hayden agreed to predatory -offender registration as part of
his plea agreement and the district court did not order Hayden to register in its sentencing
order. Instead, the state asserts, the registration requirement was imposed by the Minnesota
Department of Corrections (DOC) or the Minnesota Bureau of Criminal Apprehension
(BCA) and the district court merely gave Hayden notice of the registration requirement as
required by statute. See id., subd. 2 (requiring district court to notify defendant of
obligation to register). The state contends that this appeal should therefore be dismissed,
observing that Hayden can seek relief from the registration requirement in a civil action
against the DOC or the BCA.
Hayden acknowledges that the district court was statutorily required to give notice.
But he argues that the district court imposed the registration requirement by its oral
pronouncement at sentencing and that the imposed obligation must be based on the district
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court’s implicit finding that the offenses arose out of the same set of circumstances. He
contends that judicial review in this proceeding is therefore appropriate.
The term “justiciable” refers to a case or controversy that is “capable of being
disposed of judicially” or one that is “subject to proper resolution on the merits by a court
of justice.” Black’s Law Dictionary 1036 (11th ed. 2019). Justiciability is an issue of law
reviewed de novo. In re Civ. Commitment of Nielsen, 863 N.W.2d 399, 401 (Minn. App.
2015), rev. denied (Minn. Apr. 14, 2015).
Although we appreciate the state’s argument, we are not persuaded that this appeal
is nonjusticiable and must be dismissed. As reflected in State v. Lopez, 778 N.W.2d 700
(Minn. 2010), and State v. Berry, 959 N.W.2d 184 (Minn. 2021), the supreme court has
reviewed predatory-offender registration requirements in criminal appeals. It is true, as the
state points out, that here, unlike in these other cases, Hayden did not dispute the
registration requirement in the district court and the registration requirement was not
reduced to writing in a sentencing order. Nevertheless, when a predatory- offender
registration requirement is part of the defendant’s plea agreement with the state and is
orally affirmed by the district court at sentencing, we are not convinced that we are without
authority to review the registration requirement in a criminal appeal. We do not disagree
with the state that an offender may have a civil avenue to challenge the registration
requirement, but we still decline to dismiss this appeal as nonjusticiable.
II. Predatory-Offender Registration Requirement
Hayden contends that imposition of the registration requirement was error because
his offense of furnishing alcohol to a minor did not “aris[e] out of the same set of
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circumstances” as the dismissed charge of third-degree criminal sexual conduct. Minn.
Stat. § 243.166, subd. 1b(a)(1). Before evaluating his argument, we first address the
standard of review.
A. Standard of Review
The state urges us to apply the plain-error standard of review. It asserts that Hayden
knew that he would be required to register and yet he made no objection to the requirement.
As a result, the state asserts, Hayden forfeited his claim and can receive review only under
the plain-error standard. Under that standard, an appellant must show (1) error (2) that is
plain and (3) that affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998); see Minn. R. Crim. P. 31.02. If the three prongs are met, the reviewing court will
not exercise discretion to grant relief unless “failure to do so will cause the public to
seriously question the fairness and integrity of our judicial system.” Pulczinski v. State, 972
N.W.2d 347, 359 (Minn. 2022).
Hayden argues that review of the question of whether the registration requirement
applies is de novo because there are no facts in dispute. He points out that the supreme
court in Lopez and Berry applied de novo review when evaluating the application of the
predatory-offender registration statute to established facts. See Lopez, 778 N.W.2d at 705
(applying de novo review to district court’s application of predatory -offender registration
statute to undisputed facts); Berry, 959 N.W.2d at 187 (applying de novo review to district
court’s application of “same set of circumstances” standard to factual findings).
We agree with Hayden that review is de novo. To determine whether the predatory-
offender registration requirement applies, we must look to the facts established at the plea
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hearing and the allegations in the criminal complaint supporting the dismissed charge of
third-degree criminal sexual conduct. There is no dispute about the facts that were
established at the plea hearing, nor is there any dispute about what the complaint alleges.
Our review of the application of law to those facts is de novo.
B. Application of the Statute
We turn to the question of the proper application of the predatory-offender
registration statute. In Lopez, the supreme court interpreted the “same set of circumstances”
provision in the statute. 778 N.W.2d at 706. It concluded that the provision requires
registration “where the same general group of facts gives rise to both the conviction offense
and the charged predatory offense.” Id. It elaborated:
In other words, the circumstances underlying both must
overlap with regard to time, location, persons involved, and
basic facts. Although the conviction offense need not be based
on identical facts to the charged predatory offense, the facts
underlying the two must be sufficiently linked in time,
location, people, and events to be considered the “same set of
circumstances.”

Id. In the later case of Berry, the supreme court reaffirmed “that the test of time, location,
persons involved, and basic facts is the correct framework, and a district court’s
consideration of whether predatory registration is required must include at least these
factors.” 959 N.W.2d at 188. The Berry court emphasized that “these factors should be
read narrowly” and “cannot be applied so broadly as to include merely ‘related’
circumstances.” Id. (quoting Lopez, 778 N.W.2d at 706).
8
Hayden challenges only the first and second factors—time and location; he does not
dispute that there is sufficient overlap with respect to the third and fourth factors—persons
involved and basic facts.
For both the time and the location factors, Hayden relies primarily on Berry. In that
case, Berry’s husband forced employees of a laundry into a breakroom at gunpoint. Id. at
185. One minute later, Berry entered the laundry and told her husband that it was “time to
leave.” Id. at 186. Berry and her husband drove away and were apprehended in Ohio the
next day. Id. The state charged Berry with kidnapping, false imprisonment, threats of
violence, and aiding an offender to avoid arrest. Id. Kidnapping and false imprisonment
are enumerated as offenses requiring registration as a predatory offender. Minn. Stat.
§ 243.166, subd. 1b(a)(1)(ii) (kidnapping), (2)(ii) (false imprisonment). Berry pleaded
guilty to aiding an offender to avoid arrest in exchange for dismissal of the other charges.
Berry, 959 N.W.2d at 186. The district court ordered Berry to register as a predatory
offender, determining that her offense of aiding an offender to avoid arrest arose out of the
same set of circumstances as the dismissed kidnapping and false-imprisonment charges.
Id. at 186-87. Berry appealed the registration requirement, and this court affirmed, but the
supreme court reversed. Id. at 185. It held that Berry was not required to register as a
predatory offender because her conviction offense did not arise out of the same set of
circumstances as her charged predatory offenses. Id. at 191.
Time Factor
Hayden contends that Berry compels the conclusion that there is insufficient overlap
between his offense of conviction and the charged criminal sexual assault. He asserts that,
9
under Berry, “the time factor looks to when each offense was complete relative to the
other.”2 He argues that the time factor is not satisfied here because “[his] furnishing-alcohol
offense was complete when he handed the alcohol to the minor” and “the probable cause
portion of the Complaint alleged that the sexual assault occurred at a later time, after they
were done drinking.”
In Berry, the supreme court determined that Berry’s offense of conviction—aiding
an offender to avoid arrest—did not overlap in time with the dismissed charges of false
imprisonment and kidnapping. 959 N.W.2d at 190. The supreme court emphasized that
“[t]he offense of aiding an offender to avoid arrest is unique because it necessarily occurs
after the aided offender has committed the underlying crime.” Id. at 188. 3 The supreme
court also relied on the district court’s factual finding that Berry “decided to help her
husband flee the jurisdiction after her husband committed the kidnapping and false
imprisonment.” Id. at 189.
Unlike in Berry, the offense of which Hayden was convicted is not “unique” because
furnishing alcohol to a minor does not “necessarily occur after” any other crime. Moreover,
it is undisputed that the alleged sexual assault occurred on the same night that Hayden
provided the minor with alcohol, after the minor returned to the apartment and before she

2 Hayden also cites a nonprecedential case, State v. Anderson, No. A21-0325 (Minn. App.
Dec. 27, 2021). “Nonprecedential opinions . . . are not binding authority except as law of
the case, res judicata or collateral estoppel.” Minn. R. Civ. App. P. 136.01, subd. 1(c).
Moreover, that case is not persuasive because the factual circumstances in that case are
different than those here.

3 The supreme court went on to refer to the offense as “unique” three more times. Id. at
188-89, 190 n.10.
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went to bed. And, in contrast to Berry, where Berry did not decide to commit the offense
of aiding her husband in avoiding arrest until after the kidnapping and false-imprisonment
offenses were committed, here, the complaint alleges that Hayden gave alcohol to the girls
and made inappropriate sexual comments to the girls during the night, which demonstrates
a link between the offense of conviction and the charged sexual assault. We therefore
conclude that there is sufficient overlap in the time of the offenses.
Location Factor
Hayden argues that the offenses were separated by location because he provided the
minor with alcohol “in the community space of an apartment complex, outside the
apartment unit,” whereas the alleged sexual assault occurred “in the bathroom inside the
apartment unit.” He again relies on Berry.
In Berry, the supreme court determined that there was insufficient overlap in
location, reasoning: “The kidnapping and false imprisonment offenses occurred entirely
within the laundry building. By contrast, the offense of aiding an offender to avoid arrest
occurred almost entirely outside the laundry building in a car traveling over hundreds of
miles of interstate highway.” Id. at 190.
Here, even though Hayden provided alcohol to the minor outside the apartment in
the community area, that space was located in the same complex. Any distance between
the two offenses here is unlike the hundreds of miles that separated the offenses by location
in Berry. We conclude that there is sufficient overlap in the location of the offenses.
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Because there is sufficient overlap in the time, location, persons involved, and basic
facts of Hayden’s offenses, they arose from the same set of circumstances. Thus , Hayden
is required to register as a predatory offender.
Affirmed.